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Neighbour feuds: How a small tear in a garden hose led to a criminal trial

"Why these charges were laid is still a mystery to me," said the provincial court justice as he dismissed the charges.

A garden hose protruding into a narrow driveway between these homes in North Toronto improbably led to a criminal trial that was eventually thrown out of court. (TARA WALTON / TORONTO STAR) | Order this photo

The six-millimetre-long tear in the $50 grey garden hose was the last straw in a bitter seven-year neighbour feud.

A call to the police led to a mischief charge and a criminal trial based on so little evidence it baffled the judge who presided over the case earlier this month.

“Fortunately for the Toronto Police Service, the Supreme Court of Canada has said that stupidity in relation to the law and negligence is not a case for malicious prosecution.” said Provincial Court Justice William Wolski before dismissing the charge, according to a transcript. “Why these charges were laid is still a mystery to me.”

The case is an example of a slew of minor cases that lawyers, and notably a judge in December, have said are clogging up the court system and wasting court resources.

The story of the garden hose unravels like this.

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On a Monday evening in October 2011, 62-year-old Kathryn David returned to her home near Mt. Pleasant Rd. and Eglinton Ave. She pulled into the shared driveway between her home and that of her neighbour, Kevin Cooper. According to the judge’s decision, she got out of her car to move Cooper’s hose that went along the side of Cooper’s house and under a tall wooden gate to the backyard. Eventually, she tugged on the hose, causing it to catch on a patio chair in Cooper’s backyard and tear.

The incident was caught on video surveillance cameras set up by Cooper and he called the police to report property damage.

David was then handcuffed and taken to a police station in the back of police car, says her lawyer, Erec Rolfe.

That is standard procedure, says Toronto Police spokesperson Victor Kwong, adding that “if the public wants us to be police and not be judge and jury, we go ahead with the charge regardless of dollar amount. And then it’s up to the courts to decide whether to mediate this or go to trial with it.”

“Robert Frost said it best: that ‘good fences make good neighbours,’” said Wolski. “In this case, these fences will probably never be mended.”

“The criminal charges were laid against our neighbour following a detailed police investigation and an independent decision by the Crown prosecutor to pursue those charges,” said Cooper and his wife Sylvia by email late Tuesday night.

David declined to comment.

David’s lawyer, Rolfe, says “it’s ridiculous how far this went.”

“This case was, at its highest, a civil dispute about minor damage to a garden hose,” he said. “The criminal courts should not be used as a means to settle civil disputes between neighbours.”

The plethora of minor cases blocking up the courts came under fire last December, when Newmarket-based provincial court Justice Richard Blouin said in a ruling that “the prosecution service still must do much more to effectively manage the number of cases that end up on their doorstep.”

The judge threw out a case against a martial arts instructor accused of assaulting his young students because his right to be tried in a reasonable time had been violated.

“The real nightmare of the Crown prosecuting offences that ought to be diverted is the ripple effect on the rest of the system,” notes defence lawyer Craig Bottomley, who was not involved in this case. “This is particularly troubling when you sit back and think about all the offences that carry newly mandated minimum sentences, which essentially gets rid of any possibility of guilty pleas. The combined result is that the Courts are going to become more and more clogged and you will see serious charges thrown out for unreasonable delay.”

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